Monday, November 17, 2008

Permission Culture

This video is a future artifact, designed to evoke a possible future for copyright. The scenario it manifests is an increasingly ubiquitous, invasive and granular regime for policing intellectual property -- leading ultimately to what we've called "Neural Rights Management".

A number of us in UH-Manoa's Department of Political Science produced it for fun, with Jake Dunagan at the helm, and a budget of zero, for a 48-hour film competition in Honolulu at the start of March 02007. I posted the final edit at YouTube shortly after that, so it's been online for about 20 months, gradually accumulating a little over 1000 views -- waaaay back in the long tail of online video content, some instances of which attract millions of viewers in just a few days.

Just after midnight on 1 November, I received this automated email from YouTube:

Dear futuryst,

Video Disabled

A copyright owner has claimed it owns some or all of the audio content in your video Neural rights management, Hawaii-style. The audio content identified in your video is Pretty Brown by Elvin Jones. We regret to inform you that your video has been blocked from playback due to a music rights issue.

Replace Your Audio with AudioSwap

Don't worry, we have plenty of music available for your use. Please visit our AudioSwap library to learn how you can easily replace the audio in your video with any track from our growing library of fully licensed songs.

Other Options

If you think there's been a mistake, or you have other questions, please visit the Copyright Notice page in your account.

Sincerely,The YouTube Content Identification Team

This was interesting, for a few reasons.

One. Before this I had not, at any point, actually been aware of the name or source of the piano piece. With just two days to organise, shoot and edit the film, locating a suitable instrumental accompaniment to this playful IP riff on the MasterCard ads had been delegated to our friend Noah, a music lover and himself a musician. All I knew, as I worked on the final edit the following week, was that he'd come through with this great find, a match with the jaunty tone of the video. The YouTube email was helpful in this respect: now I know the music was cut by jazz drummer Elvin Jones, half a century ago.

Two. I'd been only dimly aware of the scope of YouTube's efforts to police copyrighted content. Certainly I knew that entire TV shows or movies, brazenly posted at user-powered video sites, had raised the ire of media companies, who in response have been becoming more aggressive about deterring copyright infringement. What I hadn't realised was that teams of people and/or robots had begun scouring the back catalogue for one minute long, zero-budget video clips with miniscule audiences, searching for unauthorised music in their soundtracks, and sending midnight emails to announce the suspension of said clips.

Three. The film we made, intending to warn about overzealous copyright enforcement, has been blocked due to overzealous copyright enforcement. I relish such ironies as much as anyone, but even though the video makes the point in a fun way, the kernel of the scenario is quite serious. This development for me is not, then, a welcome one. In his excellent and extremely important 02004 book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Stanford law professor Lawrence Lessig gave us a language for understanding what's at stake in these questions:

[W]e come from a tradition of "free culture" -- not "free" as in "free beer" (to borrow a phrase from the founder of the free-software movement), but "free" as in "free speech," "free markets," "free trade," "free enterprise," "free will," and "free elections." A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a "permission culture" -- a culture in which creators get to create only with the permission of the powerful, or of creators from the past....[The] rough divide between the free and the controlled has now been erased. The Internet has set the stage for this erasure and, pushed by big media, the law has now affected it. For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history -- between uses of our culture that were free and uses of our culture that were only upon permission -- has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.

~Lawrence Lessig, Free Culture, 02004, original emphasis. [The top quote is from the Preface, p. xiv in the print edition, or para 9 in the online/html version; the lower quote is from p. 8 in print or para 49 online.]

I don't mean to argue with those who would point out that the copyright in "Pretty Brown" persists, or that it was used in the video without anyone paying a licence fee (we didn't have any money for our 48-hour effort, but of course, neither have we earned anything from it). I'm grateful for the opportunity to tip my hat to Elvin Jones, and his brother Hank on piano, for a great little tune (that I've had stuck in my head periodically for the last year and a half). However, I don't currently have time to re-edit the video, and frankly, remain puzzled as to the argument for doing that.

So, in the meantime, internauts everywhere; for however long or short a time, enjoy.

This post is dedicated to my modest but seemingly forlorn hope for a Free Culture -- somewhere out there, an increasingly imperilled and improbable future.

[Below, for the record, are our original credits, now vanished from YouTube together with the video.]

In the future, experience itself could be regulated on a user-pays basis... A short film from the Hawaii Research Center for Futures Studies (HRCFS). Produced for the 48-hour "Showdown in Chinatown" short film challenge in Honolulu, March 2007. The theme was "the last chance", required line of dialogue "...of course you are...", and a tree and a car were required props.

4 comments:

My perception of this is that it's not the traditional copyright enforcement. Organizations like ASCAP and BMI who usually administer this for musicians would like to collect royalties, not suggest you use a different track.

This to me looks like YouTube has created a retail music business and asked, "How can we sell it to our giant installed base of customers?" As YouTube says, it's not legal action they're threatening but use of their hosting service.

I've looked into it, and the AudioSwap service is free -- you get licensed music with attribution -- so it's not (yet) a retail music business in the way you seem to have in mind.

In February 02007, when YouTube rolled out AudioSwap, internet news blog Mashable suggested that this was "more about appeasing the music labels than providing great music for your videos". I find myself agreeing with that.

The record industry's business model has two prongs, as far as I can see. The first is its actual revenue stream, which comes from charging for music in whatever medium (CD, mp3, streaming, and licensing for things like films and advertisements). The second is preventing or punishing unlicensed uses, which maintains control and protects that revenue stream from being undermined; the logic there being that if people can hear the same recordings without paying for them, they won't pay for them. This latter, protecting function is increasingly important because, going back to the Lessig quote, the nature of the Internet (any part being accessible from any point) has made "the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law".

If they're not yet turning unlicensed uses into (micro) revenue opportunities, I doubt it's for lack of desire or interest; more likely the infrastructure for micropayments isn't ready, or they realise people aren't fully primed for a full-blown Permission Culture.

But clearly, they're working on it. Therefore, to me, whether the policing of copyright breaches counts as "traditional" in non revenue-affecting, everyday situations (e.g., homemade movies) is less important than the fact that it's patently a case of overkill: requiring and denying permission in a trivial situation where the hounds of copyright law ought not to be released.

Well how's about that? Oddly enough I am (slowly) reading through a recent article published by Michael Heller and Rick Hills in the Harvard Law Review where they put forward the theoretical LAD, Land Assembly District.This is a strategy for minimizing the negatives of government condemning land (taking away your property) and maximizing the positives to the commonwealth (building a new airport, say).I got it free at www.harvardlawreview.org/issues/121/april08/heller_hills.pdf